United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION & ORDER
H. MILLER, SENIOR UNITED STATES DISTRICT JUDGE
before the court is defendant City of Houston’s
(“the City”) motion to dismiss (Dkt. 26)
plaintiff DM Arbor Court, Ltd.’s (“Arbor
Court”) second amended complaint (Dkt. 22) under Rule
12(b)(1) for lack of jurisdiction and Rule 12(b)(6) for
failure to state a claim, Arbor Court’s response in
opposition (Dkt. 31), and the City’s reply (Dkt. 34).
Also pending is Arbor Court’s motion for leave to file
third amended complaint (Dkt. 61) (“motion to
amend”) and appendix (Dkt. 62), and the City’s
amended response in opposition and appendix (Dkt. 67). Arbor
Court did not reply to the City’s response in
opposition to Arbor Court’s motion to amend.
considered the motions, responses, and applicable law, the
court finds that Arbor Court’s motion to amend (Dkt.
61) should be DENIED as futile because the
takings claims it seeks to reintroduce are unripe, and the
City’s motion to dismiss (Dkt. 26) should be
GRANTED because (1) Arbor Court’s
other federal constitutional claims are also unripe; (2) the
court declines to exercise jurisdiction over Arbor
Court’s supplemental state law claims pursuant to 28
U.S.C. § 1367(c)(3); and (3) Arbor Court’s request
for injunctive relief must be dismissed because all of the
underlying claims fail to survive the motion.
Court is a 15-building, 232 unit, multi-family apartment
community located at 802 Seminar Drive in Houston, Texas.
Dkt. 22 ¶ 15; Dkt. 61-1 ¶ 17. The community
operates as a Section 8 housing property through a Housing
Assistance Payment (“HAP”) contract with the
United States Department of Housing and Urban Development
(“HUD”). Dkt. 22 ¶¶ 5, 27; Dkt. 61-1
¶ 3. Arbor Court’s first-floor units were damaged
from flooding as a result of Hurricane Harvey in August of
2017, causing some of Arbor Court’s residents to be
displaced. Dkt. 22 ¶ 1; Dkt. 61-1 ¶ 2. The parties
agree that Arbor Court “is subject to the City’s
municipal ordinances” (Dkt. 22 ¶ 15; Dkt. 61-1
¶ 17), including Houston’s Floodplain Ordinance
(Dkt. 26 at 2). See Houston, Tex. Rev. Ordinances,
ch. 19. The parties agree that the Floodplain
Ordinance requires Arbor Court to apply for repair permits,
and that Arbor Court did in fact apply for permits to repair
damage sustained during Hurricane Harvey. Dkt. 22 ¶ 2;
Dkt. 26 at 2; Dkt. 61-1 ¶ 4.
October 10, 2017, the City’s Floodplain Management
Office (“FMO”) found that each of Arbor
Court’s buildings had been “substantially
damaged” pursuant to FEMA cost estimation guidelines.
Dkt. 22 ¶ 19; Dkt. 61-1 ¶ 21. Arbor Court
“used the FMO’s ‘Substantial Damage
Determination Appeal’ (‘SDDA’) form”
to appeal the substantial damage determination. Dkt. 22
¶ 20; Dkt. 61-1 ¶ 22. On March 28, 2018, Arbor
Court was notified by letter that its SDDA had been
successful for seven of the fifteen buildings. Dkt. 22 ¶
21; Dkt. 61-1 ¶ 23. This letter stated that “the hold
that had been placed in the City of Houston building permit
system on your address has been removed, ” and that
“[i]f you have not already done so, you may now proceed
with obtaining any City of Houston permits you need to
complete the repairs.” Dkt. 26-1 at 1–2. Arbor
Court “continued to protest the City’s
substantial damage determination for the remaining eight
Arbor Court buildings, ” and was notified via email on
May 1, 2018, that “all buildings will be classified as
non-substantial.” Dkt. 22 ¶ 22; Dkt. 61-1 ¶
24. At some unspecified later point in time, “Arbor
Court learned that the City was requiring either the
Mayor’s Office or Director of Public Works for the City
to approve the issuance and release of any permits.”
Dkt. 22 ¶ 23; see also Dkt. 61-1 ¶ 26.
17, 2018, the City notified Arbor Court via letter that it
had “concluded that Arbor Court’s requests for
permits should be denied” because the City Engineer had
“concluded that there is danger to both life and
property due to flooding in the vicinity of the site.”
Dkt. 26-3; Dkt 67-1 at App. 09–10.
October 9, 2018, an unspecified person from “the City
called Arbor Court stating that it had eight approved permits
that Arbor Court needed to pick up or the City would cancel
them out of the system.” Dkt. 22 ¶ 25; see
also Dkt. 61-1 ¶ 29. “On October 16, 2018,
Arbor Court went to retrieve those permits.” Dkt. 22
¶ 25; see also Dkt. 61-1 ¶ 29. Upon
arrival, an unspecified person from “the City stated
that the permits would not be released without supervisor
approval.” Dkt. 22 ¶ 25; Dkt. 61-1 ¶ 29.
Arbor Court “returned the next day to seek such
supervisor approval, and it was denied, as the supervisor
confirmed the City would never release any permits to Arbor
Court.” Dkt. 22 ¶ 25; see also Dkt. 61-1
date, Arbor Court has never received any permits. Dkt. 31 at
4. Yet throughout this time period, “the City has
provided permits to similarly situated apartment complexes
that allowed them to rebuild, ” and the “only
material difference between those complexes and Arbor Court
is that Arbor Court is a Section 8 property, and those
complexes are not.” Dkt. 22 ¶ 26; see
also Dkt. 61-1 ¶ 30.
8, 2018, Arbor Court filed suit against the City alleging
four causes of action: a takings claim, a due process claim,
a Section 1983 claim, and a request for injunctive relief.
See Dkt. 1. The City moved to dismiss on July 16,
2018. See Dkt. 7. That motion was mooted on October
1, 2018, when Arbor Court filed its first amended complaint,
alleging the same causes of action, but notifying the court
of a related case against Arbor Court: Jackson et al v.
U.S. Dep’t of Hous. & Urban Dev. et al, Civil
Action No. H-18-2468 (S.D. Tex.). See Dkt. 14. The
City moved to dismiss the first amended complaint on October
15, 2018. See Dkt. 16. On October 16, 2018, the
court issued its scheduling order, setting the deadline for
amended pleadings as October 31, 2018. Dkt. 17. On October
31, 2018, the City’s second motion to dismiss was
mooted when Arbor Court again amended its complaint.
See Dkt. 22. In its second amended complaint, Arbor
Court dropped its takings claim and added constitutional
claims for violations of procedural and substantive due
process, equal protection, and the Contracts Clause of the
U.S. Constitution, in addition to new state law claims for
violations of substantive due process and equal protection,
tortious interference, and violation of vested rights.
See Id . Arbor Court retained its Section 1983 claim
and request for injunctive relief. See Id . The City
moved to dismiss the second amended complaint on November 14,
2018. See Dkt. 26. On June 27, 2019, Arbor Court
moved for leave to file its third amended complaint, seeking
to update facts and reinsert the takings claim it dropped
from its second amended complaint. Dkt. 61 at 2. On July 23,
2019, deadlines in this case were stayed pending a ruling in
Civil Action H-18-2468. Dkt. 68. On August 15, 2019, Arbor
Court was dismissed from Jackson. See Civil
Action No. H-18-2468, slip op. at 1 (S.D. Tex. Aug. 15, 2019)
(granting plaintiff’s motion to dismiss Arbor Court as
a defendant). This court now considers on the pending motions
(Dkt. 26; Dkt. 61).
questions pervade both motions, and the court must consider
jurisdictional attacks before attacks on the merits.
Ramming v. United States, 281 F.3d 158, 161 (5th
regard to the motion to amend (Dkt. 61), the City argues that
the takings claim that Arbor Court seeks to reintroduce to
this litigation is not ripe because Arbor Court has not
pursued any formal appeals, meaning that it is without a
final decision-a prerequisite to a ripe takings claim. Dkt.
67 ¶¶ 21–25. In support of this argument, the
City has attached various evidentiary materials, including
the July 17, 2018 denial letter, which informed Arbor Court
of the “process to apply for a variance, ” or its
right to “appeal the denial of permits to the General
Appeals Board.” Dkt. 67-1 at App. 09. Arbor Court
contends that there are no ...